So what is this special court? The Supreme Court was created by the Constitution, and has thus been with us since 1789, when the first justices were appointed. My focus in this book is on the Court I know best, which is the Court of the past three decades, the Court as it has been variously composed since 1969, when the most influential justice in the twentieth century, Chief Justice Earl Warren, stepped down. The years since 1969 have given us the Burger Court (1969–1986) and now the Rehnquist Court. These are the Courts I write about in this book, the Rehnquist Court especially, with appropriate and necessary references to the Warren Court and its groundbreaking work.
I should emphasize that this book (some readers will be happy to know) is not a manual on Supreme Court practice. My goal is more modest and, I hope, more interesting: to introduce many of the key decisions of the modern Supreme Court; to describe the legal tools the justices have used in interpreting the law and deciding cases; to explain the big ideas that have moved the justices; to identify the sharpest divisions among them; and to show the difference that the vote of a single justice has so frequently made.
Throughout the book I pursue a much larger theme — that of the role the post-Warren Supreme Court has played in American life. That role was much smaller a century ago, and during the Warren Court it grew so large that commentators — friendly and hostile alike—spoke of it as a “revolutionary” court. Among other things, the Warren Court ended Jim Crow laws (state-sponsored segregation); ordered the reapportionment of the U.S. House of Representatives (and also of state legislatures and local governmental bodies) according to a “one-person, one-vote” standard; changed key aspects of federal and state criminal procedure (enhancing the rights of the accused in the process); expanded First Amendment protections for free speech; and insisted on a stricter separation of church and state, by ordering an end to prayers and Bible readings in the public schools. No one disputes that in boldly reshaping whole areas of the law, the Warren Court distinguished itself—for better or for worse—from its predecessors, insinuating itself deeply into American life. By doing so, it provoked a profound—and continuing—argument about the proper role of the Court in American life and the kind of justices a president should appoint.
In 1973, the Burger Court handed down a decision with the look and feel of a Warren Court ruling in
Roe v. Wade. Roe
voided the abortion laws of all fifty states by announcing that the Constitution protects a woman's right to abortion. But the Burger Court was, as it had to be, given its membership, different from the Warren Court. It was, in short, a less “revolutionary” body. And the Rehnquist Court, with its membership changing too, has been different again. My aim is to identify the kind of Court we have had, and to specify the role it has played in American life, since Earl Warren's retirement.
Many things can be said about the post-Warren Supreme Court, not least that it has evolved into a more lawyerly tribunal and that it has become increasingly dedicated to stability and moderation. But one thing that may not be said about the Court today is that it has abandoned its central role in American life, which was established so firmly by the Court under Earl Warren.
Bush v. Gore,
a case that most Americans recognize, makes the point. That case was decided in December 2000, and it effectively resolved the presidential election. The Court didn't have to decide
Bush v. Gore;
that the Court stepped in at all demonstrated its willingness to exercise judicial power in a way that foreclosed action by Congress and the state of Florida.
Bush v. Gore
illustrated the modern Court's most abiding characteristic. It is one identified time and again in the pages of this book. Ultimately in our system of government, the Supreme Court is first among equals.
O
N
N
OVEMBER
7, 2000, A
MERICANS
went to the polls and elected a new president. Or at least we thought we did. Late that night—actually, early the next morning—we realized that the presidential race had no clear winner. Al Gore narrowly led George W. Bush in the popular vote. But he hadn't won enough states to give him the 270 electoral votes necessary to prevail in the electoral college and become president. Nor, though he trailed in the popular vote, had Bush. Florida, with its 25 electoral votes, was in doubt. In the first official tally of the state's popular vote, Bush led Gore by 1,784 votes out of almost 6 million cast. The machine recount required under Florida law narrowed Bush's lead to a mere 327 votes. Exercising his rights under Florida law, Gore then sought hand recounts in four counties. Gore believed that there were uncounted votes that had been cast for him, and that if they were counted, they would give him Florida and its electoral votes, and thus the presidency. We now know the rest of the story: After a tumultuous five-week dispute over vote-counting in Florida, the Supreme Court of the United States resolved the controversy, and George W. Bush became the nation's forty-third president.
The irony was plain. The Supreme Court itself had been an issue during the campaign. Both Bush and Gore had discussed the kind of justices they would appoint should vacancies occur. Governor Bush wanted justices who would interpret the law, not make it up. Vice President Gore wanted justices who would keep the Constitution in tune with changing times. Governor Bush held up Justices Antonin Scalia and Clarence Thomas as models. Vice President Gore cited the late Thurgood Marshall, who was appointed by President Lyndon Johnson and served until 1991. This was an issue on which Bush and Gore sharply disagreed. But who would have thought that the Supreme Court would in effect pick the individual who would in turn pick the next justices?
The irony invites us to think more closely about the Supreme Court. The Constitution we adopted more than two centuries ago created the Court, just as it created the Congress and the presidency. Elections settle (or are supposed to settle) who sits in Congress and the White House. The justices of the Supreme Court, by contrast, are appointed by the president, subject to Senate approval. In civics courses we're told that we govern ourselves through our elected officials, not the appointed ones. But a case like
Bush v. Gore
suggests that things are more complicated. Those appointed justices seem to be more powerful than the textbooks allow, especially if they can, in effect, install someone in the White House.
As it happens, the justices exercise power in countless arenas—and have done so for some while. Under Chief Justice Earl Warren, who served from 1953 to 1969, the Court abandoned the more limited role it had maintained through most of its history and assumed a more assertive one—even a revolutionary one. Even its friends acknowledged that it was a Court on a mission, interested in doing what was good and fair. To its foes, the Warren Court was the most activist Court in the nation's history. By activist, the Court's critics meant that the Court had acted in ways that exceeded, and sometimes wildly so, its appropriate and legal authority as an unelected branch of government. In other words, judges were acting more in a legislative or policy-making role, not simply resolving legal issues in the course of litigation.
Many books have been written about the Warren Court, but there are fewer about the Courts that came after it. This is a book about those Courts, which is to say the modern Court, the Court first under Chief Justice Warren E. Burger (1969–1986) and then under Chief Justice William H. Rehnquist, who succeeded Burger in 1986. For most of us, the post-Warren Court has a less distinct profile than its predecessor. This book aims to draw a clearer picture of this Court, especially as it is composed today.
Like the Warren Court, the post-Warren Court has been accused of activism. This is so even though the Republican presidents since Earl Warren retired—Richard Nixon, Gerald Ford, Ronald Reagan, and George Bush (the elder)—sought through the ten justices they appointed (the other two were appointed by President Clinton) to produce a Court that would not be activist but restrained. The fact is, however, that the Court of the past thirty years has at times engaged in activism. The 1973 case of
Roe v. Wade,
in which a majority announced that the Constitution protects the right to abortion, is a prime example. The Court's 2000 decision in the presidential-election litigation was likewise regarded as activist not only by liberals but by many conservatives as well.
Nonetheless, it is a mistake to regard the post-Warren Court simply as an extension of the Warren Court, as a continuing exercise in activism. Whatever else may be said about it, the post-Warren Court has lacked its predecessor's almost missionary zeal to reshape society. The justices appointed to the Court since Earl Warren stepped down have proved more lawyerly than those who sat on the Warren Court and much less inclined to act as reform-minded legislators. They have generally been cautious and moderate in their decision-making; so much so, in fact, that they have declined to overrule the most controversial cases of the 1960s and early 1970s. They have sought principles or standards that will bring greater unity and coherence to their work, in particular the principle of equality. Perhaps most remarkably, the Court has not withdrawn from the most controversial and divisive issues of social policy. To the contrary, through its power to say what the law is, the Court has insisted that its pronouncements are superior to those of the other branches and the states. Moreover, as
Bush v. Gore
makes clear, the Court is willing to step in—actually, over the states and Congress—and resolve a presidential election.
Chapter One begins not with recent cases, but with one from 1803. Until that time, the Court had little occasion to exercise the judicial power assigned to it by the Constitution. John Jay was our first chief justice, yet the job was so undemanding that he left his judicial duties and traveled to England to negotiate the treaty named after him. Not until 1803, under our fourth chief justice, John Marshall, did the Court decide the case that ensured its political relevance and indeed its enduring role in American life. The case was
Mar-bury v. Madison.
It stands as one of the Court's greatest decisions. The Court was faced with a conflict between a law of Congress and a provision in the Constitution. What was the Court to do? The unanimous Court, with Marshall writing the opinion, ruled that the congressional statute was inferior to the Constitution and thus must be set aside. In explaining the decision, Marshall expounded the doctrine of judicial review, under which it is the province of the judiciary to declare what the law is.
Without judicial review, the Court and our politics would have been very different. Consider that the Court would not have been in a position to decide
Brown v. Board of Education
(the 1954 Warren Court decision that outlawed public-school segregation), or
Roe v. Wade,
or
Bush v. Gore.
So while this is a book about the post-Warren Court, I begin in Chapter One by telling the story of
Marbury v. Madison.
This chapter also sketches briefly the Court's exercise of judicial review, showing how judicial supremacy has sometimes been the result. Chapter One thus provides a constitutional and historical prologue.
Throughout the book I discuss most of the justices of the past thirty years. Seventeen have served since 1969, including six who were holdovers from the Warren Court. As the Court opens the twenty-first century, five loom as the most influential figures. Chapter Two introduces this group: Chief Justice Rehnquist, and Justices O'Connor, Scalia, Kennedy, and Breyer. It then introduces the remaining four justices, including the Rehnquist Court's most original thinker, Clarence Thomas.
Chapters Three through Fifteen treat major Supreme Court cases of the past three decades, with the first nine chapters examining individual-rights cases in particular. The cases focused on in these chapters are ones in which individuals sought protection for rights they claimed were protected by the Bill of Rights or the Fourteenth Amendment, which guarantees equality and due process of law. The rights are familiar ones: free speech and religious liberty, for example, or privacy and equal protection.
Although they are the most visible and recurring, individual-rights cases are by no means the only kind the Court decides. Indeed, an important part of the Court's business, especially in recent years, has concerned the structure of government itself, specifically the nature and scope of powers assigned to Congress, the presidency and the executive departments and agencies, and finally the states. Chapters Twelve through Fifteen discuss what can be called the Court's structural work—its interpretation of laws of Congress; its changing views of the role of Congress vis-à-vis the states; its judgments about the scope of executive power, including its landmark rulings in the 1974 Nixon tapes case and in the Reagan-era litigation over the constitutionality of the independent-counsel law; and, last but not least, its recent work in the unprecedented litigation that settled the 2000 election.
One theme of this book concerns the continuity between the Warren Court and its two successors. In a number of areas, the Warren Court advanced new understandings of the law that broadened and deepened the federal judiciary's influence. These understandings have largely survived the Burger and Rehnquist Courts. Consider, for example, the First Amendment, where the Warren Court adopted a decidedly more libertarian view of the free-speech and free-press guarantees. This view, as I show in Chapter Three, has by no means been overturned by the post-Warren Court but, to the contrary, has been strengthened. Likewise, the Warren Court developed the body of law prohibiting state-sponsored religious exercises from the public schools. That law hasn't been reversed, as many conservatives argued it should have been. To the contrary, as I discuss in Chapter Five, it has been reaffirmed and indeed extended in its applications.